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Our phone hours are Monday-Saturday, 9AM to 6PM.
Our office specializes in assisting individuals, couples and families with
legal questions, preventative legal advice, comprehensive legal analysis and
legal representation involving:
Contested and Uncontested
Support Increases and Decreases
and Visitation Disputes
Issues, for the Mother and the Father
Support Increases and Decreases
and Estate Planning
both Simple and Complex
Personal and Small Business
We invite you to read the section on this website which
pertains to your legal issue, then call us to schedule a consultation. This
website will be updated from time to time to provide you with more and more
information, so we suggest you put our website address on your list of important
websites to check out from time to time.
Divorce, Contested and Uncontested
Dividing Assets and Debts In Divorce Proceeding
In a divorce proceeding the couple’s
assets and debts will be divided between them. An asset or debt that is
acquired during the marriage is deemed to be a “marital” asset or debt by
the divorce court, even if the asset or debt is held in one spouse’s sole name,
and will be dealt with by the court.
Can divorcing couples determine
how to divide their assets and debts without the judge making the decision for
Yes. The great majority of
divorces in Oregon are settled by the parties before the trial date. If the
parties have decided how to divide the assets and debts, and have settled all
other issues, a Stipulated Judgment is drafted by the attorney representing one
of the spouses, and both sign it. The Judgment is then submitted to the Court
and signed by a judge. The divorce is then final and the parties are single
again. Division of assets is final. The issue of responsibility for debts is not
Can the spouses decide how to divide debts without the
Yes and no. If
the mortgage, credit card or loan was applied for with both spouses signing the
papers, BOTH will be legally responsible until the debt is paid in full. When
the couple divorces and the Divorce Judgment requires one of them to repay the
debt, the other spouse is not “off the hook” with the creditor. The creditor was
not a party to the divorce proceeding; therefore, the creditor’s contract rights
have not been altered. If payments are not made as required in the loan
contract, the creditor can sue one or both parties for the money. If a debt is
in just one spouse’s name it is best that that debt be assigned to
that spouse in the Divorce Judgment.
What information is
listed on each ex-spouses’ credit report?
Each ex-spouse’s credit report will show that
he or she is liable on a joint loan and will NOT show that the Divorce Judgment
requires just one ex-spouse to service the debt. Moreover, if the spouse who
received the house in the divorce does not sell it or refinance the mortgage,
chances are good that the other spouse will not qualify for a mortgage to buy a
house for him/herself.
At trial the judge
will require that the ex-spouse’s name be removed from the mortgage within a
year or two, but allows the party receiving sole title to decide how to do it.
In recent years a few mortgage lenders have been willing to remove the
ex-spouse’s name from the mortgage upon request. Usually the house must be
refinanced or sold to end the ex-spouse’s loan obligations.
ex-spouse who is supposed to pay off a joint debt fails to do so, what can the
other ex-spouse do?
party will not hold up his or her responsibility to pay a debt. The other party
can pick up the payments in order to protect his or her credit rating, or wait
to be sued by the creditor. After the debt has been paid off, the wronged party
can file a motion in the same court that granted the divorce, seeking to be
reimbursed by the ex-spouse. If the party can prove that he or she paid off the
debt that was assigned to the other party in the Divorce Judgment, a judgment
will be granted in favor of the party who paid the debt and against the party
who was supposed to pay the debt.
What happens to the
If the parties each want to
retain the house purchased during the marriage the judge has the authority to
award it to either party. The judge also has the authority to order the house to
be sold, and the authority to rule how the proceeds will be spent or divided.
The judge usually requires that the proceeds first be used to pay off all
the debts incurred during the marriage in order to disentangle the parties’
Is there any difference in the manner in which a
divorcing couple will divide the assets and debts, compared to how the judge
will divide them?
Probably. The judge
is restrained by statute and by rulings from the Oregon Court of Appeals &
the Oregon Supreme Court when he or she rules upon division of assets and debts.
In 1977 the Oregon Court of Appeals ruled that property division should
disentangle the spouses’ financial affairs and make them free from each
other’s interference. The couple can be far more creative in structuring a
Divorce Judgment that meets their unique needs and circumstances.
Moreover, Oregon Statutes require the Court
to consider a homemaker’s contribution to the marriage as a contribution to
acquisition of marital assets. Thus, the family breadwinner does not leave the
marriage with all the assets. Nor are the assets divided based upon each party’s
income during the marriage.
What happens when one or both spouses
brought assets or debts into the marriage?
In an often cited 1985 ruling, the Oregon
Court of Appeals found that the more intertwined the parties’ financial
circumstances the more likely an equal distribution should be ordered
even though a short-term marriage was involved, and one spouse did not bring as
many assets into the marriage.
How are assets and debts handled
when all were acquired during the marriage?
The standard formula for property division in
a divorce requires first placing a market value on each and every asset
(without regard to which spouse holds title), including the present value
of a pension plan. These values are added together, and the total debts are
subtracted. Each spouse receives half of the value of the total assets.
In dividing the assets, some may need to be
sold, so that each spouse leaves the marriage with half the value of the marital
estate. The judge may order a certain property be sold and the proceeds used to
pay off certain debts.
Another way to
equalize property distribution is for one spouse to receive a money judgment
wherein the other spouse will pay a sum of money plus interest in the future.
Most such judgments require monthly payments to begin shortly after a judge
signs the Divorce Judgment.
What happens to an asset that one
spouse brought into the marriage?
a party has brought an asset into the marriage, that party will usually
leave the marriage with that asset, or the original value of that asset, UNLESS
it has been commingled with joint assets, or with the spouse’s assets.
Regardless, the other spouse will share equally any increase in value of
that asset during the marriage, including the first spouse’s pension plan.
The more intertwined the parties’ financial
circumstances the more likely an equal distribution would be ordered by
the judge even though a short-term marriage was involved, and even though one
spouse did not bring as many assets into the marriage.
Kate brought a house into
her marriage with Jerry and she kept sole title. The couple lived in Jerry’s
house during their marriage, while Kate’s house was rented out. The rental
income Kate received was deposited into Kate’s bank account, and was never used
for marital expenses. Kate paid repairs and expenses associated with the rental
house out of these funds, and used most of the remaining funds on personal
When the couple divorced Kate
retained the rental house, but she had to share with Jerry the house’s
appreciation in value during their 10-year marriage.
During a four-year
marriage, Lynn transferred a co-ownership interest to David in her pre-marriage
residence, and the parties contributed substantial marital funds toward the
improvement of this house. The Oregon Court of Appeals ruled that the parties
have equal interest in the residence.
was awarded sole title of the house in the divorce proceeding. However, the
total value of the house was included as a marital asset and David
received half of its value by receiving other marital assets.
happens to a loan from one spouse’s relatives?
Loans from relatives are treated by the
divorce court as any other debt IF there is a written agreement AND the couple
was making regular payments pursuant to the agreement. If not, the loan will be
treated as a gift and will not be included as a debt when the couple’s assets
and debts are divided.
Support Increases and Decreases
Since the Oregon
Legislature first enacted a child support statute in 1989, it has made many
changes in the formula by which support is calculated. [Prior to 1989 child
support was based on a formula created by the Oregon Supreme Court.] The power
and authority of the Oregon Department of Justice, Support Enforcement Division
has increased significantly, and the authority of parents to make financial
decisions regarding their own children has decreased. Nevertheless, parents
still have more authority than they may think.
Child Support calculated?
Oregon Child Support Guidelines’ formula consists of several variables and a
fixed chart of “basic support.” With this information the “legal” amount
of support to be paid from the non-custodial to the custodial parent can be
calculated: The variables are: 1) each parent’s gross monthly income, 2) the
number of children, 3) the children’s health insurance premium, if any &
which parent is paying the premium, 4) the number of children each parent has
from another marriage, 5) which parent will have custody and the amount of
visitation time the other parent will have, 6) the ages of the children and 7)
the actual monthly day-care expense. With this information an experienced
attorney can determine the “legal” amount of child support.
the Child Support calculation take into account income taxes?
No. The child support formula is based upon
before-tax income and does not account for changes in federal income
taxes from year to year. The payer is not able to deduct child support on tax
returns, and the recipient is not required to pay taxes on the child support
Can divorcing parents create their own financial
arrangements for the children?
and No. The short answer is yes, IF the parents work together and have attorneys
who are willing to work with them. Some attorneys will tell you that you have no
choices, but they are inexperienced and/or uninformed. Seek an attorney who
understands all your options and will work with you to maintain some control.
The short answer is no, IF the parents do not cooperate and/or the case actually
goes to trial. With some exceptions, the trial judge is required to
follow the Oregon Child Support Guidelines.
Who decides the
correct amount of Child Support?
a Circuit Court Judge has the authority to order one individual to pay
money to another individual, including child support. Both legal parents of a
child are obligated to provide for the child. This is true for both paternity
parents and divorced parents. If the parents do not live together, one parent
can obtain a child support order from the Circuit Court requiring the other
parent to pay support.
How does the process start?
The parent who wants to modify an
existing support order can choose one of two methods. He or she can file
a motion directly with the Circuit Court, either with or without hiring an
attorney, OR file an application with the DA’s Office who will process the
paperwork, contact the other parent, calculate the alleged support amount and
draft the Support Order. If one parent wants to challenge the amount of support
that the DA’s Office calculates he/she can request a telephone hearing. The
decision of the hearings referee does not become a support order until it
is signed by a Circuit Court Judge. Either parent can challenge the referee’s
decision by filing an appeal with the Circuit Court within 60 days. The State of
Oregon has no authority to arbitrarily change child support and no
authority to “rule” upon the amount of support. ONLY a Circuit Court Judge can
do that. A support order obligates monthly payments only when it is
signed by a judge.
Is there any difference between filing for
child support directly with the Circuit Court, and filing through the DA’s
Yes! There is only one child
support chart and only one set of rules. The Court, the DA’s office and the
hearings referee are all supposed to calculate child support the same
way. However, judges have much more authority, more experience with “the bigger
picture” and more discretion in applying their own interpretation of the child
support rules, than the DA’s caseworkers. Also, the expertise of the DA’s staff
varies from county to county, and the caseworkers are usually NOT attorneys. The
key to protecting your interests lies in understanding the process. I
strongly recommend a consultation with an experienced attorney before a
parent files the application with the DA’s Office.
How long does
it take to get child support changed?
The length of the process varies widely. If a parent files directly with
the Circuit Court in Multnomah or Clackamas Counties, the entire process will
take 6 to 12 weeks. In my practice I pick a hearing date 6 weeks in
advance, because that is all we need to get the other parent served and prepare
for the hearing. Filing with the DA’s Office takes about 6 to 12 months.
The time varies greatly from case to case, depending upon whether a parent
requests a telephone hearing, the experience of the caseworker, and whether the
case is transferred between caseworkers.
With such a difference in
the time involved, why would anyone file with the DA’s Office?
The taxpayers are paying for the
entire process if a parent uses the DA’s Office. However, the parent has
little control over the process and is not kept informed. If a parent files
directly with the Circuit Court (with or without hiring an attorney) he/she has
control over the process, is closely involved in each step, and can stop or
change the process at many points. Also, other issues, such as the child’s
medical expenses and visitation problems can only be addressed by the Circuit
Court, since the DA’s Office has no authority to handle these.
Moreover, once the bureaucracy starts the
process it is out of the parent’s control and cannot be stopped until it runs
the full course. If the parent is unhappy with the result, his or her
only recourse is to file an appeal with the Circuit Court. The old
expression: ‘you get what you pay for’ really applies here. Free services may
save you money in the short-run, but often cost you much more in the long
run. I have met many unhappy parents who filed for an increase or decrease via
the DA’s Office, and wound up receiving the opposite.
Supreme Court Denies Parents Equal Protection”
By Diane L. Gruber
Published in The West Linn Tidings, May 17, 2001
In its April
26, 2001 decision, the Oregon Supreme Court affirmed an Oregon statute that
places financial burdens on divorced and paternity parents that are not forced
upon married parents.
The Fourteenth Amendment to the U.S.
Constitution prohibits states from treating some citizens differently than other
citizens: “No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States nor shall any State
deprive any person of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal protection of the laws”
In 1973, the Oregon Legislature decided that divorced and paternity
parents would be required, BY STATUTE, to finance their adult children’s forays
into post-high school learning. There is no such statutory requirement that
requires married parents to provide a dime for ANY purpose to sons and
daughters who have reached majority. Indeed, once the kid reaches age 16 parents
are not even required to get Junior to the front steps of the high school
building, although they are required to support him UNTIL the age of majority,
The age of majority was lowered from 21 to 18 in 1973. At 18 we can
vote, we can enter into binding contracts, we can live wherever we like, we can
travel to the other side of the world, AND we can force BOTH parents to send us
a monthly check.
There are just two “conditions” that must be met: 1)
our parents don’t reside together and 2) we are enrolled in ANY type of school
part-time (10 credit hours per term) maintaining a “C” average. We can
extort these payments from mom and dad until age 21 so long as we continue with
our basket-weaving classes. We are not even required to declare and work toward
obtaining a degree.
For years family law attorneys, recognizing that
this Oregon statute tramples the 14th Amendment with mud-covered boots, (or
should I say ducks), have speculated over just when a trial judge would be brave
enough to officially recognize and comply with the U.S. Constitution, and
thereby incur the wrath of the powerful Liberal minority who has long controlled
the Oregon Judiciary, the Oregon State Bar and the Oregon Legislature.
Finally, in 1997 an Oregon Circuit Court Judge, Paula Kurshner,
(Multnomah County) had the courage to follow the U.S. Constitution when she
ruled that “ORS 107.108 permits a child support obligation to be imposed upon
one class of citizens . . . while no provisions exists permitting such an
obligation to be imposed in like circumstances upon married parents.” In her
ruling Judge Kurshner said Dennis Crocker did not have to make “child” support
payments because his 18-year-old daughter decided to go to college. His ex-wife,
Marianne Groom, appealed this decision to the Court of Appeals who reversed
Judge Kurshner’s ruling, stating that there is a “rational basis for a
distinction between divorced parents and cohabiting married parents.” Mr.
Crocker then appealed to the Oregon Supreme Court.
The Oregon Supreme
Court refused to address the issue of constitutionality. In a tortured reasoning
process that utilized an obscure statute adopted in 1889, the court came up with
an excuse for discriminating against divorced and paternity parents. Neither the
father’s attorney nor the mother’s attorney used this antiquated statute, ORS
108.110, as supporting either side of this dispute. However, the Support
Enforcement Division and the Oregon Attorney General, in it’s “friend of the
court” brief brought up this statute. That was all the court needed to know.
They had their marching orders from the State, and they marched all over the
U.S. Constitution, not to mention the Oregon Constitution, and a significant
number of Oregon’s citizens.
The childless, never-divorced and/or naive
among us might very well ask “Why should Support Enforcement or the Attorney
General care whether or not parents must pay ‘child’ support for adult
children?” The State of Oregon intercepts the great majority of child support
payments paid between mothers and fathers and runs the money through the State’s
coffers before sending it to the college student or the custodial parent. While
these funds are being held by the State, the State earns interest on it. This
interest is not turned over to the parent or college student.
Custody and Visitation Disputes
Basic Legal Terms
When a mother
and a father do not live together and both want custody of the children, a judge
decides who is awarded sole custody. What criteria does the judge utilize? Do
judges use the same factors with paternity parents as they do with divorcing
parents? Are mothers and fathers treated equally in custody decisions in
Oregon’s Courts? Is “joint custody” the same as “shared custody?” What is the
difference between “legal custody” and “physical custody?” Diane L. Gruber
The judge is required to “give primary
consideration to the best interests and welfare of the child” ORS 107.137(1).
There are five factors that the judge is required to consider in granting sole
custody to one parent over the other parent: (a) Emotional ties between the
child and other family members; (b) Each parents’ interest in and attitude
toward the child; (c) The desirability of continuing an existing relationship;
(d) The abuse of one parent by the other and (e) The willingness and ability of
the parent to facilitate and encourage a close and continuing relationship
between the child and the other parent.
If both parents were living with the
child just before the legal action started, the parents begin the custody
dispute on equal footing. The next step is to discern which parent is the
“primary parent.” In ORS 107.137 (1)(b) the judge is required to consider the
parties’ interest in and attitude toward the child. This has general been
interpreted as determining who fills the role of primary parent. Of the five
statutory factors, this factor has the most significance with judges.
The primary parent is the one who handles
most of the decision-making and care-taking of the child. The primary parent
interacts with the child and spends more time with the child than the other
parent, and makes most of the day-to-day decisions about the child’s activities.
In some marriages, there is no clear-cut primary parent, as the parents divide
the parenting duties more or less equally. However, in most marriages the
primary parent is the mother. The younger the child, the more likely the mother
will be the primary parent.
the parents’ behavior, as parents, prior to the custody dispute largely
determines who will be granted “sole legal custody” and “physical custody” of
the child. Absent unusual circumstances, the non-custodial parent is granted a
visitation schedule wherein he or she has the child every other weekend, half
the annual holidays and several weeks each summer. The Courts are extremely
reluctant to deny contact between the child and the non-custodial parent, as
they recognize that a child needs time with both parents.
ORS 107.137 also states: “No preference
in custody shall be given to the mother over the father for the sole reason that
she is the mother, nor shall any preference be given to the father over the
mother for the sole reason that he is the father.” In actual practice, most
mothers have an edge over most fathers due to the fact that the mother is
usually the primary parent. This is especially true of paternity mothers, as
often the father has never lived with the child.
When a married couple has a baby they
have joint legal custody of the baby, even though no one calls it that. “Joint
legal custody” means that each parent is equal under the law as regards to the
decision-making for and on behalf of the child. When a child is born
out-of-wedlock, the child has only one legal parent, the mother. Joint legal
custody does not take effect unless and until the mother and the biological
father sign a paternity affidavit and file it with Oregon’s Vital Statistics
office, or the Court declares a man to be the legal father.
During a divorce, parents have the option
of continuing joint legal custody of the children, but they must both agree to
do so. The judge does not have the authority to aware joint legal custody over
the objections of one parent. The judge only has authority to grant sole legal
custody to one parent and a visitation schedule to the other parent.
The term “physical custody” merely
designates the adult with whom the child resides. This is typically the
same adult who also has legal custody, but it does not have to be. In the
past decade or so, it is not unusual for a single parent to turn the children
over to his or her parent(s) to raise, both with and without signing formal
custody documents. The parent retains legal custody, but the grandparent has
physical custody. This means that the parent still has all the legal authority
to make decisions about the child, including moving him to another caretaker.
Shared custody between parents consists
of the child living in both households. For example, the child lives one week at
mom’s house, the next week at dad’s house, the following week at mom’s house
again and so on. These parents typically have joint legal custody of the
child, but it isn’t mandatory. This counsel has seen custody arrangements where
one parent has sole legal custody, yet the parenting schedule has the child
living half the time with dad and half the time with mom (i.e. the child resides
with each parent about 50% of the time).
Issues, for the Mother and the Father
When a child is born out-of-wedlock,
he has only one legal parent. The child does not have a legal father unless and
until the mother and a man sign a paternity affidavit and file it with Oregon's
Vital Statistics office, or the Court declares a man to be the biological
father and makes him the legal father via an Order of Paternity.
ORS 109.094 states "Upon the paternity of
a child being established in the proceedings, the father shall have the same
rights as a father who is or was married to the mother of the child." This means
that a paternity father has the same obligation to pay or right to receive child
support as a divorced father. He can also pursue custody and visitation orders
through the court.
In a custody dispute, most
paternity mothers have an edge over the father due to the fact that usually the
father has never lived with the child. The court is very reluctant to uproot the
child unless there are serious problems in the mother's household. The court
grants identical visitation orders mow called "Parenting Time Orders" to
paternity fathers as it does to non-custodial divorced parents, except in the
situation where the child and father are strangers. In that case, there is often
a get-acquainted period of several months before the child stays overnight with
Support Increases and Decreases
There are three kinds of spousal support (AKA alimony) under Oregon’s Divorce statutes. Spousal support is unisex in that either spouse can be the recipient of spousal support from the other. However, due to the fact that most homemaking and child rearing duties are done by the wife in a marriage, it is unusual that a wife would be required to pay spousal support to her ex-husband.
The three kinds of Spousal Support are: 1) Transitional, 2) Maintenance, and 3) Compensatory.
Transitional: This spousal support is to assist the dependent spouse to obtain whatever education and training is necessary to allow him/her to prepare for re-entry into the workforce, or for advancement in the workforce.
Maintenance: This spousal support is to assist the dependent spouse to maintain a reasonable standard of living.
Compensatory: This spousal support is paid by one ex-spouse to the other when there has been a significant financial or other contribution by the dependent spouse toward the education, training, skills, career or earning capacity of the other spouse.
Unlike child support, there is no mathematical formula to arrive at the monthly amount of the spousal support, or the length. The amount & length are based upon many factors: a) duration of marriage; b) the parties’ education & work experience; c) the parties’ relative earning capacities; d) the financial needs & resources of each party; e) the age & health of each party; f) a party’s custodial or child support obligations; g) the standard of living established during the marriage; and h) any other factor the judge deems just & equitable.
A comprehensive analysis by an experienced divorce attorney can give the husband or the wife a ballpark figure of what amount and what duration of spousal support to expect if the case goes to trial. Most spousal support cases settle prior to trial.
Wills and Estate Planning
If you answer false to any of the following
statements, you need to consult an attorney about updating your estate plan.
T/F I have a Will that fully expresses my
T/F I have not had any children or grandchildren
born since my Will was signed.
T/F I have not married or
divorced since my Will was signed.
T/F I have not been
widowed since my Will was signed.
T/F I understand how all
real estate I own is titled.
T/F I know who will be
appointed as executor of my estate.
T/F I have provided for
the transfer of retirement plan benefits that may remain after my
including IRAs, 401k
T/F I have no concerns about possible costs and
delays in transferring property to my spouse or
T/F If I have a revocable living trust I have
transferred all assets into it, and I have a Will to deal with
remainder of my assets.
Estate Planning Fees
Importance of Having a Will
There is a great deal of misinformation and myth about Estate Planning and
Wills circulating among Oregonians. I hope the following questions and answers
will clear up some of the confusion.
|Will w/ Simple Trust
|Power of Attorney
Diane L. Gruber What
happens if I do not have a Will at my death?
If you own any property in your name alone,
your assets must go through the probate process regardless of whether or not you
have a Will. Without a Will your property will be distributed to various
relatives according to Oregon Statutes, not
according to your wishes.
Also a Will can reduce the cost of probate. Can a Will be
You can change your Will as
often as you want, so long as you are of “sound mind.” The “sound mind” standard
is very easy to meet. You may want to change your Will for many reasons, such as
a marriage, a divorce, the birth of children or grandchildren, or a significant
change in your assets. Everyone should review their estate plan every five
to determine if it meets his or her current
objectives. This review may or may not require changes to your Will.
Who will manage my estate after my death?
Having a Will allows you to decide who will
be the executor (called “Personal Representative” in the Oregon Statutes) of
your estate. You may choose a friend, a relative or a professional, such as an
attorney or a CPA. If you think there may be hard feelings in your family and/or
your estate is very large or complex, you may want to name a professional;
otherwise, a trusted relative or friend can handle the executor’s duties with
the help of a probate attorney. What are the advantages of having
A Will allows you to decide
how your assets will be distributed or managed after you die. Also, it lets your
wishes be heard regarding the care of minor children (appointment of guardians).
It often prevents disputes among heirs & relatives. The probate process
settles all the deceased’s debts, and transfers property debt-free, except for
secured debts, to your heirs. A Trust can be set up after your death to provide
for the financial needs of your children, spendthrift relatives & disabled
loved ones by including Trust provisions in your Will. What are
the disadvantages of having a Will?
. Remember, a Will is not “activated” until your death. Up to
that point you may change it as often as your circumstances and wishes change.
Fortunately, the cost of having your Will drafted and updated is quite
reasonable if you choose the right attorney. Are there certain
people who need Wills more than others?
Yes, 1) married couples who have children
from previous marriages, and 2) single adults without children or grandchildren.
It is especially important for these individuals to carefully craft an estate
plan so that each loved one is treated as the individual wishes that person to
be treated when his or her assets are distributed. If these individuals,
regardless of age, discuss estate planning with an experienced attorney, he or
she can avoid disputes among loved ones, keep probate costs to a minimum and
prevent the “wrong” person from receiving assets. Is it possible
for a deceased person to own assets that are not in his name?
Yes. Two situations come to mind immediately:
1) If your death is caused by the negligence of others, your estate may be
entitled to receive a judgment against the wrong-doer and/or insurance funds;
and 2) Just prior to your death (perhaps without your knowledge), someone else
passed away leaving assets to you. I dealt with a mother in her 70s and a
daughter in her 40s who passed away within a few weeks of each other. The
daughter owned only joint assets, until
her mother passed away leaving
her half of a large estate. Since the daughter had a Will, her wishes prevailed
and a dispute among relatives was avoided. TOP Probate, both
Simple and Complex The Probate Process Is Simple
Some Oregonians view Probate with
dread and they try to avoid it at all costs. They will spend hundreds, if not
thousands of dollars, and many, many hours planning how to avoid it. In truth,
there are few legal proceedings as cost-effective as the Probate process. The
Probate process is designed to provide an orderly transfer of the deceased’s
assets to the persons chosen to receive them, while protecting the interests of
certain close relatives and creditors. It is a simple process that the public
has been taught to fear by those wanting to sell them “probate alternatives.”
These so-called “probate alternatives” are always more complex and more
time-consuming than Probate, and are rarely less expensive.
Diane L. Gruber
What is probate?
Probate is the legal process that transfers the assets of a deceased person to
living persons. Probate is usually handled by the court in the county where the
deceased resided at the time of death. When is probate
Probate is not needed if the
owns bank accounts & property jointly
living person. Therefore, a married couple who own all their assets jointly will
not need a probate proceeding when the first spouse passes away. Probate is
necessary to transfer the deceased’s property when any kind of valuable property
is held in his or her sole name. If a person passes away leaving just a few
personal belongings & household goods, these can be distributed without a
probate proceeding. Therefore, a married couple who own all
jointly will not need a probate proceeding when the first spouse passes away.
How long does probate take?
Probate can be, and should be, started
immediately after death. If the deceased had a will, the person named as
"personal representative" (aka: executor) is obligated to start the probate
process. If the deceased died without a will, a close relative should start the
process. An experienced attorney can finalize a simple probate in five to seven
months. If property must be sold during probate, or there are complicated tax
matters, probate can take a little longer. Few probates take longer than a year.
If funds are needed by a beneficiary the court can make a partial distribution
of probate funds or property before the end
of the probate process. The
Oregon statutes have an expedited process for small estates that takes just over
four months. What is a “small estate” proceeding?
A small estate proceeding applies if the
deceased owns total assets valued at $200,000 or less. To remain under this
figure the real property cannot be valued at more than $150,000 and the personal
property cannot be valued at more than $50,000. Personal property includes
that is not real property. Do I need an attorney
to help me with my relative’s probate?
Probate in Oregon is not complicated (unless
the assets and debts are complex) but involves a good deal of paperwork that
must be filed in a timely manner. To prepare the proper documents at the right
time, and to ensure that all property is properly transferred, you need a
probate attorney. What are the costs of probate?
The Court filing fee is a percentage of the
value of the deceased’s assets. For example, the Court charges $248 for a
$50,000 estate, $448 for a $500,000 estate and $648 for a $3,000,000 estate. An
attorney will charge by the hour and the court must approve the fees
the attorney is paid. What happens to my assets if I
die without a will?
The assets that
you own in your sole name will be distributed via Oregon statutes. How your
estate is distributed depends upon your marital status and the status of your
blood relatives. Here are a few examples. If you are single and have children,
each child will receive an equal share of your entire probate estate. If you are
married, with or without joint children your spouse will receive your entire
estate. If you are married, but your children are from another marriage, your
spouse receives one-half of your estate and your children receive one-half. If
you die single, leaving no children or grandchildren, your surviving parent(s)
will receive your entire estate. If your parents and grandparents are already
deceased, and you are unmarried, your brothers and sisters will each receive
equal shares of your estate. Statutory distribution does not take into account
whether or not you ever MET the relatives that will inherit. Indeed, your least
favorite relative could wind up with all or part of your estate. Only by
signing a will can you be assured that people you love will receive your
. When should probate be started?
Probate can and should be started within a
few weeks after the person has passed away. The person named as personal
representative (executor) in the will is responsible for protecting the
deceased’s assets, so he or she will want to begin the process promptly.
How is probate started?
Probate begins by filing a petition with the Circuit Court in the county where
the deceased lived at the time of death or where the deceased owned property.
The will is attached to the petition when it is filed with the court. The court
will appoint the person named in the will as personal representative (executor)
to serve without bond. (The named person is allowed to decline.) If there is no
will, a relative or close friend will ask the court to be appointed personal
representative. The court will normally grant the request and require the
personal representative to obtain a bond. What are the duties of
the Personal Representative?
personal representative is called “executor” in most other states. He or she is
the person who handles the deceased’s affairs. With the deceased’s funds the
executor pays the final expenses of the deceased, collects money that is owed to
the deceased, prepares the required tax documents and pays the deceased’s taxes.
Oregon statutes provide for a generous fee for the executor, which is based upon
the value of the estate. The deceased may provide for an additional fee for the
executor in the will. What steps take place during the probate
After the executor is
appointed by the Court, a notice to creditors is published in a local newspaper.
This notice tells creditors that they have four months to bring any claim
against the probate estate for debts owed by the deceased. The executor also
gives written notice to all known creditors. Heirs (as defined by Oregon
statute), as well as the people & organizations named in the will, are
notified of the probate proceeding. The executor ascertains what assets the
deceased owns and their approximate values, and files an inventory with the
court. If funds are needed, the executor may sell assets during the probate
process. Four months after the notice is published in the newspaper, the
executor can file a motion with the court to close the probate estate and
distribute the net assets to the proper beneficiaries or heirs. If all the
documents are in order the court will grant this request within a few days. The
executor’s final duties are to be sure beneficiaries or heirs receive all the
deceased’s property, after known creditors are paid in full. What
does the Court do?
The court makes
sure the will is valid, and that the proper person receives the correct asset
per the will. If there is no will the court makes sure the heirs receive the
assets pursuant to statute. The court also makes sure all the “interested
persons” were notified about the probate, and that claims of creditors are
settled. The court reviews the probate receipts to be sure that all expenses
taken from probate funds were valid. These court duties are handled without a
hearing. Normally, the probate process does not
require a court hearing.
A hearing will only be needed if a relative or creditor files an objection to
how the probate is being handled, or to the validity of the will, and the
dispute can not be settled by discussions between the executor and the
complaining person. Such disputes are relatively rare when the will has been
properly drafted, and an experienced attorney is assisting the executor
(Personal Representative). Is it ever too late to start the
No. In 2000 this
attorney handled the probate of an elderly lady who passed away in 1977. A
probate was not filed in 1977 because the family members mistakenly believed
that probate was not required. The deceased did not own any assets in her sole
name other than a piece of undeveloped land on the Oregon coast. A relative paid
the property taxes on this land all these years, and decided it was time to
remove the deceased’s name from the property so that the deceased’s son and
daughter can have title to the land.TOP
GRUBER & ASSOCIATES, PC
Diane L. Gruber, Attorney At Law
By Appointment Only
West Linn, OR 97068